Nathan Tells Council About OAG's Successes, Priorities

In his annual performance oversight appearance before a D.C. Council Committee, Attorney General Irvin B. Nathan on February 28 praised OAG’s “talented, dedicated, and professional group of attorneys and support staff” and listed the office’s major accomplishments and priorities.

Including contingent settlements in the online travel company tax case, OAG has obtained judgments or settlements this fiscal year of $82 million, “far more than our local budget,” Nathan said. “Although justice cannot be measured in terms of dollars and cents, it should be clear from the record that OAG is a more than sound investment for the District,” he told the Committee on the Judiciary and Public Safety.

Among OAG highlights, the AG cited major consumer protection victories, commercial successes in the CityCenter DC and Skyland projects, and amicus briefs in the U.S. Supreme Court relating to the Affordable Care Act and same-sex marriage.

OAG won 336 of 360 civil, administrative, and criminal appeals, a success rate of 93 percent. In Public Safety division criminal prosecutions, including juvenile crime and adult misdemeanors, there were successful adjudications in 98 percent of cases. The success rate exceeded 94 percent in cases handled by the Family Services Division, which includes child protection, domestic violence, and mental health.

More than 92 percent of the 261 cases handled by the Civil Litigation and Public Interest divisions were successful on motions or at trial. Total claims against the District totaled $2.2 billion. The Attorney General said these actions were resolved for $20.9 million, a small fraction of the potential liability.

In terms of challenges for the future, Nathan said his highest priority is “building on the important work of my predecessors and on the work we have done in the past three years towards the goal of creating and maintaining a first-class legal office for the District of Columbia.” That includes signing collective bargaining agreements for fiscal years 2011-13 and laying the groundwork for agreements for 2014 through 2017.

Other major priorities include making progress toward resolving major class actions against the District that involve judicial oversight and significant unnecessary expense for the taxpayers, ensuring that our legal teams have the necessary powers, authority, capabilities and manpower, and continuing “to be tenacious in protecting the integrity of the District’s treasury through litigation.”

In sum, Nathan told the committee, “it is our goal that the OAG continue to provide the District of Columbia government the highest quality legal services while promoting the public interest.”

First AG Election Date Still Undecided

The date of the first election for an Attorney General in the District is still at issue in the courts. In late February, D.C. Superior Court Judge Laura A. Cordero dismissed a lawsuit by self-declared Attorney General candidate Paul Zukerberg challenging the validity of a statute passed by the Council that scheduled the District’s first election for Attorney General for 2018.

Zukerberg contended that because a 2010 referendum amending the D.C. Charter stated that the first election for the position “shall be after January 1, 2014,” the election must be held this year. Last year, the Council approved a bill providing that the vote not occur before 2018. The Council voted after OAG advised that the Council had the legal authority to take that action, consistent with the District Charter. Zukerberg has appealed the decision, and the D.C. Court of Appeals is scheduled to hear arguments on May 29. The court declined to order that the Attorney General’s position appear on the April 1 primary election ballot.

Separately, in early April, the Council dropped consideration of a proposal by Councilmember Mary Cheh to schedule the Attorney General election this November. The bill was shelved after Attorney General Nathan wrote to Council Chairman Phil Mendelson that the proposal was inconsistent with the District Charter’s requirement that the AG election be held on a “partisan basis.”

The bill proposed that candidates for Attorney General this November be allowed to identify themselves with political parties without having gone through the primary election process. Attorney General Nathan wrote that such a procedure “would place the first elected Attorney General on dubious legal footing and create serious credibility and legitimacy problems for that Attorney General and this office.”

Local 1403 of the American Federation of Government Employees, AFL-CIO, which represents OAG attorneys, told the Council that it also opposed the bill’s attempt to schedule the election for this November. The union said, “We believe that changing the date for the election, yet again, will upset the settled expectations of the electorate and the legal community that the election will occur in 2018.”

OAG Praised At Skyland Groundbreaking

Ariel B. Levinson-Waldman, Senior Counsel to Attorney General Nathan, led a team of OAG representatives on March 12 appearing with Mayor Vincent C. Gray, Deputy Mayor for Planning and Economic Development Victor Hoskins, and others to break ground on the long-awaited Skyland Town Center at 2646 Naylor Road S.E.

The center, as envisioned by residents decades ago, will create a high-quality town center in the heart of the East End that will feature a Walmart, neighborhood retailers and restaurants.

OAG handled litigation that enabled the development to proceed. In December 2012, the D.C. Court of Appeals ended a lawsuit that had held up the development, upholding a jury verdict rejecting a property owner’s demand for nearly $10 million.

Deputy Mayor Hoskins singled out for praise Chief William Burk of the Land Acquisition and Bankruptcy section of OAG’s Commercial Division, led by Susan Longstreet and David Fisher. Hoskins gave his Skyland groundbreaking shovel to Burk in recognition of the OAG team’s efforts. Others involved in the Skyland cases included Edward (“Ted”) Henneberry of the Commercial Division and Carl J. Schifferle of the Office of Solicitor General.

At the event, Mayor Gray said, “We have accomplished what many said was impossible -- clearing a path to transform this underutilized and blighted site. This is a red-letter day for Wards 7 and 8, as Skyland Town Center will bring much-needed amenities to an area that has long been underserved.”

From Our Ethics Counselor: Election Dos and Don'ts

With D.C.’s primary election behind us and the general election coming up this fall, we asked David Hyden, OAG’s acting ethics counselor, to answer some frequently asked questions about what a District employee may or may not do politically. Hyden notes that the answers are based on the Ethics Act, D.C. Code § 1-1161.01 et seq., effective in April 2012, and the Local Hatch Act, D.C. Code § 1-1171.01 et seq., effective in March 2013.

A District government employee:

MAY engage in political activity, including attending political rallies and meetings, actively working on or managing a political campaign, and assisting in voter registration drives; but

MAY NOT engage in any political activity during work hours or while otherwise on duty, in a District government building or vehicle, or while wearing a D.C. government uniform or ID;

MAY NOT use any government resources for political activities at any time – including office space or other facilities, or equipment such as copiers, telephones or computers; and

MAY NOT coerce, explicitly or implicitly, any subordinate employee to engage in political activity.

MAY contribute money to political campaigns, political parties, or partisan political groups; but

MAY NOT knowingly solicit, accept, or receive a political contribution from any person for a District regulated election (except if you yourself have filed as the candidate). (However, you may solicit or accept a contribution for an election in another jurisdiction, including Maryland and Virginia).

MAY file as a candidate for a non-partisan, independent political office in a District regulated election, such as a seat on the Board of Education or an Advisory Neighborhood Commission; but

MAY NOT file as a candidate for a partisan political office in such an election.

In addition, we’ve had a number of OAG employees volunteer as judges or watchers at polling places throughout the region. OAG encourages this kind of activity, but you must go through the outside activity approval process. Please contact Acting Ethics Counselor David Hyden at (202) 724-5386 and he will help you through the process.

If you have other questions about political activities, please contact David, or the Board of Ethics and Government Accountability (BEGA) at (202) 481-3411.

Finally, if your position is paid in whole or in part by federal funds, be advised that you are also subject to the federal Hatch Act. If you have questions about the federal Hatch Act, contact the U.S. Office of Special Counsel at (800) 854-2824.

In Victory For Taxpayers, Court Rules for D.C. On CityCenterDC Project

A federal judge ruled in a lawsuit filed by OAG that wages paid for construction of the CityCenterDC project are not subject to the federal Davis-Bacon Act. The March 31 decision could save as much as $20 million in increased construction costs that an official of the U.S. Department of Labor had suggested should be paid by the District.

U.S. District Judge Amy Berman Jackson set aside as “arbitrary, capricious and contrary to law” a U.S. Department of Labor ruling that wages for the nearly-completed project on the former Washington Convention Center site are governed by the Davis-Bacon law. That law applies only to “public buildings and public works,” and the court ruled that the privately financed, privately owned and privately operated project is neither a “public building” nor a “public work.”

The OAG case against the U.S. Department of Labor contended that the mixed-use development with 2.5 million square feet of space for private offices, retail space, rental apartments, condominium units, and a hotel, does not fall under Davis-Bacon, contrary to a ruling by the Department of Labor’s Administrative Review Board (ARB). The ARB cited the District’s involvement in planning the project and its expected benefits to the public.

Judge Jackson agreed with the District, writing that although CityCenterDC will bring “incidental public benefits,” the “big picture (is) that the project is not being built by the government, for the government, or for the people the government represents.” The Court wrote: “What is being constructed will be no more for the use and benefit of the population of the District than any other condominium or hotel: members of the general public will be welcome to enjoy the surrounding sidewalks…and...can spend their dollars in nearby shops…but at the end of the day, they will not be permitted to go upstairs.”

Attorney General Nathan hailed the ruling, which he said “nullifies an unprecedented determination by a Department of Labor board that was contrary to many decades of judicial and administrative precedents interpreting the meaning of ‘public buildings and public works.’ Judge Jackson properly analyzed the language, history, and purpose of the Davis-Bacon Act, and her finding will prevent the unjustifiable spending of up to $20 million in additional wages in this project. Even more importantly, the decision overturns a Department of Labor interpretation that, if followed, would increase the costs of or discourage future private development in the District. The decision is a victory for the public interest and for D.C.’s taxpayers.”

The Attorney General commended Assistant Attorney Generals Wayne C. Beyer and Carl Schifferle for their handling of the lawsuit, working under the supervision of Deputy Attorney General George Valentine. He also commended the firm of Morgan Lewis & Bockius, a nationally prominent law firm known for its labor law practice, for its pro bono assistance.

Recent Major Cases From Civil Litigation and Public Interest Divisions

Two of our major litigating divisions have added a selection of highlighted cases from the first quarter of 2014 to the OAG website. Here are brief summaries, with full details available on the website:

Civil Litigation Division:

* Tucker v. D.C., Gustus v. D.C.--juries returned verdicts for the District in two cases filed by former employees of the Office of the Chief Financial Officer. The cases were handled by AAGs Alex Karpinski, Rick Ferrini, Michael Addo, and Caliandra Burstein.

* American Federation of State, County, and Municipal Employees Local 2401 et al. v. D.C.--a judge dismissed a case filed by former employees of D.C.'s Department of Health Care Finance and their union over a reduction in force. The case was handled by AAGs Gary Feldon and Doug Rosenbloom.

* Capital Behavioral Health LLC v. D.C., et al.--a judge ruled for the District in a case contending that the District's foreclosure on United Medical Center inerfered with the plaintiff's right to occupy space at the center. This case also was handled by senior AAG Tom Koger and AAGs Melissa Baker and Robert Rich.

OAG Technology Tip: Why You Should Archive Your E-Mail

E-mail archiving is a systematic approach to saving and protecting the data contained in e-mail messages so it can be accessed quickly at a later date. Archiving removes messages from your inbox, but keeps them in your account so that you can always find them later. Archiving is like moving messages into a filing cabinet for safekeeping, rather than putting them in the trash can.

Why Archive?

Cleans up your inbox by getting messages out of your way and alleviates the annoying message of “approaching mailbox quota limit”, yet the message are still only a mouse click away.

Archived messages are stored on the OAG users U: drive, ensuring fault tolerance in case you need to retrieve the message for future use

When you delete a message (instead of archiving), it will be automatically and permanently deleted after about 30 days. However, archiving a message allows you to keep the message and its contents indefinitely.

Tip: To ensure that your archive e-mail is saved to your U: drive, verify that the file location is pointing to your U: drive as shown in the picture.

OAG employees who would like step-by-step instructions on how to archive their e-mail should message Gene Jackson, gene.jackson@dc.gov.

D.C. Court Of Appeals Rules For District In Aeon Financial Tax Sale Case

Upholding OAG’s arguments and rejecting those of an out-of-town wholesale tax sale purchaser, the D.C. Court of Appeals ruled on Feb. 6 in a way that protects District homeowners whose properties are subject to foreclosure and requires tax sale purchasers to dismiss foreclosure actions before they may be reimbursed for their purchases.

The court ruled in a case involving Aeon Financial, LLC, which was a high-volume purchaser at several tax sales held by the District. In hundreds of its cases, Aeon argued that because the District did not collect interest from homeowners that should have accrued between the date on which the homeowner paid taxes and the date on which the homeowner reimbursed Aeon for its reasonable legal expenses, the homeowners had not redeemed their properties and Aeon was entitled to foreclose unless the additional interest and any newly-arising legal expenses were paid by the homeowner or until the District cancelled the sales. Sale cancellation would have required the District to pay Aeon millions of dollars in additional interest and legal fees.

In a unanimous decision for a three-judge panel, Judge Roy McLeese rejected Aeon’s arguments, holding that taxes are considered paid for tax sale redemption purposes when the homeowner in good faith pays all amounts billed by the District, even if the District makes a mistake in calculating the tax amount. Therefore, the court concluded, a homeowner redeems property when all taxes billed by the District are paid and, if a foreclosure complaint has been filed, the homeowner has fully reimbursed the tax sale purchaser for its reasonable legal expenses.

Attorney General Nathan said the opinion “reinforces that tax sale purchasers may not use hyper-technical readings of the statute to put District homeowners at risk of foreclosure or to obtain refund payments from the District in excess of what the statute reasonably allows. The decision upholds the District’s administrative practices dealing with tax sales and provides certainty to homeowners who seek to redeem their properties.”

The Attorney General commended James McKay of the Office of the Solicitor General for his handling of the appeal in this matter and OAG attorneys David Bradley and Eli Wood for their handling of the matter in Superior Court.

$60.9 Million Settlement In Online Travel Companies Case

OAG reached a contingent settlement on Feb. 24 under which six major online travel companies will pay the District a total of $60.9 million plus interest for hotel-room taxes on rooms booked online if the D.C. Court of Appeals affirms a Superior Court ruling in the District’s favor. If the District sustains its win on appeal, this monetary recovery would be the city’s largest through a case it litigated.

Under one settlement with Expedia, Hotels.com, Hotwire, Orbitz, and Travelocity, and a separate agreement with Priceline.com, payments by the six companies would total $60.9 million, plus additional interest, in stipulated judgments based on rulings by D.C. Superior Court Judge Craig Iscoe that established tax liability extending back over a decade.

The case was filed in 2011, alleging that the online travel companies were selling D.C. hotel rooms at retail prices, but were remitting hotel room taxes based on substantially lower wholesale prices that they paid to D.C. hotels. The District asked the Superior Court to declare that each company “is required by District law to collect and remit sales taxes based on the retail prices that the [company] charges website customers for hotel rooms in the District of Columbia.” Judge Iscoe issued a summary judgment order on September 24, 2012, ruling that the District is entitled to receive hotel room taxes based on the online travel companies’ retail prices, rather than the hotels’ wholesale prices. Subsequent proceedings in the case established the amounts of tax liability for the past decade.

Attorney General Nathan said, “This case sends the message that the District will vigorously enforce its tax laws and that all corporations, no matter their size or industry, have to pay their fair share of taxes. I am pleased that the trial court proceedings have been favorably concluded and that this settlement will spare the District time and expense of litigating the damages issues at the Superior Court. I look forward to defending on appeal the trial judge’s determination that the online travel companies owe the District back taxes for these hotel room sales.”

The Attorney General commended the trial team attorneys, including Public Advocacy Section Chief Bennett Rushkoff and Assistant Attorney Generals Jimmy Rock and Andrew Costinett, supervised by Public Interest Division Deputy Attorney General Ellen Efros.

New Ruff Fellows Begin OAG Work

Thirteen new Charles (Chuck) F.C. Ruff Fellows, graduates of George Washington University Law School, Georgetown University Law Center, UDC David A. Clarke School of Law, and American University Washington School of Law, began work at OAG in January.

The fellows, all 2013 graduates, are being funded jointly by the schools and OAG. They were chosen by the Attorney General’s Office in a competition among top graduates of each school, and will work on D.C. legal issues for a year.

Two previous classes totaling 30 Ruff Fellows worked at OAG during the last two years. Several of them were hired for permanent positions in the office.

The fellowships were created to provide the District with more legal help and to promote public interest legal work. They are named in honor of Charles F.C. Ruff, who was the District of Columbia Corporation Counsel (the position now known as Attorney General) from 1995 to 1997. Ruff also served as the U.S. Attorney for the District of Columbia and taught at area law schools. Ruff, who passed away in 2000, was White House Counsel to President Bill Clinton after his service as Corporation Counsel.

Attorney General Nathan said, “We are delighted with our continuing partnership with three law schools and welcome the addition of American University to the ranks this year. Our previous classes of talented Ruff Fellows have contributed an enormous amount to our legal work on behalf of the District, and we expect no less from the new class of outstanding law school graduates.”

Tax Case Defendants Agree To Make Restitution Payments

Defendants in three major tax cases handled by the Public Safety Division have agreed to make restitution payments to the District of Columbia totaling nearly $500,000.

C. Lilette Campbell, owner of the business formerly known as Bridges Babies and Early Childhood Academy, 6119 Georgia Ave., N.W. (now operating as Bridges Academy), pled guilty to 15 criminal tax violations related to her failure to submit employment taxes, which she retained for her own personal use. Pursuant to the plea agreement, Ms. Campbell agreed to pay $159,322.88 in restitution and was sentenced to 90 days of incarceration on each charge, all of which was suspended. She was placed on five years of supervised probation and ordered to pay $1,500 to the Victims of Violent Crime Fund.

Caryliss and Vanessa Weaver, owners of Alignment Strategies, a management consulting company, entered into a deferred sentencing agreement in 2009 in which Caryliss and Vanessa each agreed to pay $138,011.08 in restitution due to the District for failure to pay corporate franchise taxes. To avoid being sentenced, after failing to make full restitution, the defendants agreed to pay $221,779, including penalties and interest. The agreement required the immediate payment of $148,000. The remaining restitution is to be paid pursuant to the terms of the superseding deferred sentencing agreement.

In a case referred by OAG to the United States Attorney for the District of Columbia, Beverly Prince Blue of Hyattsville, Md., pled guilty on Dec. 4, 2013, to first degree fraud and was ordered to pay $79,000 in restitution to the District. Ms. Blue was accused of filing fraudulent D.C. nonresident requests for refunds between 2001 and 2007. She was placed on five years of supervised release.

Attorney General Nathan commended Assistant Attorney General Scott J. Peary, working with Deputy Attorney General Andrew Fois; Charles Hunter, chief of the criminal investigation division of the D.C. Office of Tax and Revenue (OTR), and OTR agents Larry Brown, Nyema Morais, and Antwyonette Hines for their work on the cases.

Businessman Convicted On Ammunition Charge

Mark Witaschek, a local businessman, was found guilty on March 26 by D.C. Superior Court Judge Robert E. Morin of one count of unlawful possession of ammunition based on his possession of 25 bullet projectiles. Witaschek was ordered to pay $50 to the Victims Compensation Fund and to register as a gun offender.

In response to media inquiries, Attorney General Nathan said, “We had credible information that this defendant had threatened his estranged wife with gun violence, and when the Metropolitan Police Department searched his premises, officers found he had an unregistered store of ammunition in his possession. We believe that he has a gun secreted in Virginia with a relative. He has now been convicted in court, where he had every opportunity to defend himself. We believe that justice has been done and we hope we have prevented an incident of gun violence, of which there has been far too much in the District.”

The Attorney General commended Assistant Attorneys General Jemine Trouth and Peter Saba for their work on the case.

Todd Kim Nominated By Obama To D.C. Court of Appeals

On Feb. 14, President Obama nominated D.C. Solicitor General Todd Kim to the D.C. Court of Appeals, the District’s highest court. The President said Kim “has proven himself to be not only a first-rate legal mind but a faithful public servant.” Kim is a former appellate attorney with the United States Department of Justice’s Environment and Natural Resources Division. He is a graduate of Harvard College and Harvard Law School, and served as a law clerk to Judge Judith Rogers of the United States Court of Appeals for the District of Columbia Circuit.

In a message to OAG staff, Attorney General Nathan said that Todd would be “a fair, learned, wise and compassionate judge and for that we will all be grateful . But for the office and for me personally this is a great loss, as he has been a star here since well before my arrival. Not only has he been outstanding as an appellate advocate and as a superb manager of the excellent team we have assembled at OSG but he has been a trusted adviser to me on the most knotty legal problems we have faced.”

Fernando Rivero Elected President Of Hispanic Bar Association

Assistant Attorney General Fernando Rivero was sworn in as President of the Hispanic Bar Association of the District of Columbia (HBA-DC) by retired U.S. District Judge Ricardo Urbina at the Association’s Annual Meeting and Elections on January 16.

Rivero has been at the Office of the Attorney General since 2005, beginning his tenure in the Child Protection Section. He currently practices civil prosecution in the Civil Enforcement Section, representing approximately a dozen government agencies and enforcing their legal mandates through litigation in Superior Court, the Office of Administrative Hearings, and various boards and commissions.

He has served in various leadership roles with the HBA-DC for over ten years. He represents HBA-DC on the Hispanic National Bar Association (HNBA) Board of Governors. At the HNBA level, he chaired the HNBA DREAM Initiative Task Force.

Besides serving as President of an Association with over 450 members, his major project this year is collaborating with HNBA as HBA-DC co-hosts the HNBA 39th Annual Convention in September. Every year HBA-DC provides professional development programs for Hispanic attorneys, a mentoring program, summer public interest fellowship, and judicial internships for law students, advocates for the rights of the Hispanic community, and promotes qualified Hispanic to judicial and other government positions.

Sarah Connell A Cafritz Prize Finalist

Assistant Attorney General Sarah Connell of the Family Services Division’s Domestic Violence Section was one of 23 finalists in the 13th annual Cafritz Awards competition. The Center for Excellence in Public Leadership at George Washington University partners with the Morris & Gwendolyn Cafritz Foundation to recognize and reward outstanding performance and exemplary service by D.C. government employees.

Connell joined OAG in 2008 after working for two non-profit legal organizations. She represents domestic violence victims in obtaining civil protection orders and handles criminal prosecutions of people who violate the orders. She has specialized in representing victims of stalking, domestic violence victims with mental illness or developmental disabilities, and elderly victims. She also has frequently participated in national and local training of attorneys, probation officers and law students on domestic violence legal issues.

Her nomination by a Metropolitan Police Department officer was supported by Janese Bechtol, chief of the OAG Domestic Violence Section, for consistently achieving excellence and performing above and beyond the call of duty.

Attend The Award Ceremony May 20

OAG’s Annual Employee Incentive Awards Ceremony will be held from 2 to 3:30 p.m. Tuesday, May 20, in the Old Council Chambers on the first floor of 441 4th St., N.W. All employees are welcome to attend.

Promotions and Appointments

Andrew Saindon of the Public Interest Division's Equity Section has been designated a Senior Assistant Attorney General

Amy McDonnell was named General Counsel at the District Department of the Environment (DDOE).

Mikelle DeVillier is now General Counsel for the Office of the Chief Medical Examiner.